CRIMINAL LIABILITY FOR NEGLIGENCE, ETC. 191

kills a person by administering to him medicines, even which he thinks will be beneficial to the patient and not dangerous to health or life, would, it seems, still be guilty of manslaughter: Marsh v. Davidson, 9 Paige (N. Y.), 579.

1 Hale's P.

If a physician or surgeon, or any person assuming to be such, by his gross negligence or gross ignorance, or by his rashness or want of proper caution, causes the death of his patient, it is manslaughter at common law C. (Eng.) 429; 4 Bl. Com. 197; John Long, 4 C. & P. (Eng.) 432; Butchell, 3 C. & P. 333; Rex v. Ellis, 2 C. & K. (Eng.) 470; Rex v. Spiller, 5 C. & P. 333; Rex v. Williams, 3 C. & P. 635.

Rex v. St.

Rex v. Van

In the case last cited the defendant, a surgeon and physician, was indicted and tried for manslaughter at common law. Lord Ellenborough charged the jury as follows: "It is for you to consider whether the evidence goes so far as to make out a case of manslaughter. To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention. One or the other of these is neces

sary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter. It does not appear in this case that there was any want of attention on his part; and from the testimony of the witnesses on his behalf, it appears that he had delivered many women at different times, and from this he must have had some degree of skill."

It may be affirmed as a general rule, in the absence of statutory regulations on the subject to the contrary, that a physician or surgeon, qualified and authorized by law to practice as such, could not be held criminally responsible for an honest error of judgment in the treatment of his patient, although it may cause his death. But if the death of a patient results from his gross carelessness, or ignorance, or from criminal misconduct or inattention, he would be guilty of manslaughter at common law, if not under statutes: See 3 Wheeler's Crim. Rep. (N. Y.) 312; Commonwealth v. Thompson, 6 Mass. 134; Fairlee v. People, 11 Ill. 1; Brice v. State, 8 Mo. 561; State v. Morphy, 33 Ia. 270; 11 Am. Rep. 122. Thus where a physician recklessly applied kerosene oil to a patient's body, which

CRIMINAL LIABILITY FOR NEGLIGENCE, ETC. 193

caused blistering and death, it was held that he might be convicted of manslaughter, although there was no evil intent: Commonwealth v. Pierce, 138 Mass. 165; 52 Am. Rep. 264.

A person who merely assumes to act as a physician, but is known not to be such, is not criminally liable for the death of his patient caused by the medicine which he administers, provided he acts in good faith and to the best of his abilities: State v. Shultz, 55 Ia. 628; 39 Am. Rep. 187.

CHAPTER VII.

PRACTICE WITHOUT A LICENSE OR DIPLOMA

PROHIBITED.

§ 94. General provisions of statutes on the subject.

In various states, if not generally, the practice of medicine or surgery, without a license therefor or a diploma, is prohibited by statute, and a penalty is imposed for its violation.

Thus it is provided by statute in New York as follows:

"No person shall practice physic or surgery, unless he shall have received a license or diploma for that purpose from one of the incorporated medical societies of the state, or the degree of doctor of medicine from the Regents of the University; or shall have been duly authorized to practice by the laws of some other state or country, and have a diploma from some incorporated college of medicine, or legally incorporated medical society in such state or country.

"No person coming from another country

shall practice physic or surgery in this state until he shall have been examined and licensed by the censors of the State Medical Society; and no person coming from another state shall practice physic or surgery in this State until he shall have filed a copy of his diploma in the office of the clerk of the county where he resides, and until he shall have exhibited to the medical society of that county satisfactory testimonials of his qualifications, or shall have been examined and approved by its censors.

"No diploma, granted by any authority out of this State, to an individual who shall have pursued his studies in any medical school within this state, not incorporated and organized under its laws, shall confer on such individual the right of practicing physic or surgery within this State.

"Every person licensed to practice physic or surgery, or both, shall deposit a copy of such license with the clerk of the county where he resides, who shall file the same in his office; and until such license is so deposited, such person shall be liable to all the penalties provided by law, in the same manner as if he had no license.

"No person under the age of twenty-one years